A Big Week for Planning: Emergency Measures for London, A Supreme Court Decision and PIB in the Lords

It is rarely quiet in the world of planning. This week, however, has been bigger than most.

The last five days have seen significant amendments made to the Planning & Infrastructure Bill, the Supreme Court’s judgment in C G Fry and, just yesterday, the publication of significant proposals to unlock housing delivery in London. So, all-in-all, it has been a little busy.

This blog* is both a summary of recent events and my attempt to get my head around them. If it is a little long, I apologise, but there is a lot to cover.

The Planning & Infrastructure Bill is amended in the Lords.

The Planning & Infrastructure Bill entered its report stage in the House of Lords on Monday. Unsurprisingly, the trend of government amendments being passed is continuing. This time, however, the occasional non-government backed change is also making it through the votes.

We are only two days into the debates, but so far, in addition to the successful government amendments, the following changes have been voted through:

• An amendment by Baroness Coffey (amendment 3) to prevent the removal of a requirement for the Government to reply to any resolutions by Parliament or recommendations from a select committee relating to National Policy Statements.
• The government’s proposals to widen the range of applicants who can apply for water related DCOs under the NSIP procedure passed, but subject to amendments by Lord Lansley (amendments 5 to 7) and Lord Parkinson (amendment 7A)
• An amendment by Baroness Scott (amendment 7B) requiring consultation for any water projects being put forward as NSIPs that require the demolition of more than 20 or more residential properties
• An amendment by Lord Borwick (amendment 55) to allow regulations to be made to improve the accessibility of public EV charging points for disabled people.
• An amendment by Baroness McIntosh of Pickering (amendment 56) to requiring the Secretary of State to consider reducing regulation for the construction of low hazard reservoirs.
• An amendment by Lord Lansley (amendment 63) that would ensure that the secondary legislation used to introduce a national scheme of delegation for planning decisions is made under the affirmative procedure – so it requires the approval of parliament.
• Notably, the government’s proposal to to enable the Secretary of State to give directions restricting the refusal of planning permission or permission in principle by a local planning authority in England (amendment 64) was voted down 236 to 163.

Report stage resumes on Monday. With the Hillside amendments, and proposed changes to Part 3 of the Bill, still to come it is shaping up to be an extremely interesting debate indeed!

Supreme Court decision in C G Fry & Son Limited

On Wednesday, the Supreme Court handed down a long-awaited decision in C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35. The case has been heavily reported over the last few days, so I will keep this short.

The Supreme Court considered two primary issues in the appeal:

1. Whether the Habitats Regulations can require an appropriate assessment before an LPA can approve reserved matters for a grant of outline planning permission; and
2. If so, whether the same position applies to Ramsar sites, which are not covered by the Habitat Regulations, but which the NPPF states should be given the same protection.

On the first issue, the Supreme Court upheld the decision of the Court of Appeal. Finding that the Habitat Regulations can require an appropriate assessment to be carried out after planning permission had been granted (for example at reserved matters stage) if impacts on a protected site had not been ruled out at an earlier stage.

On the second issue, the Supreme Court found for the Appellant. Finding that “the Court of Appeal erred in giving a statement of policy (in para 181 of the NPPF) the same status and force as a legal rule set out in legislation (in regulation 63 of the Habitats Regulations) in respect of the decision in this case whether to discharge the conditions attached to the reserved matters approval in relation to an outline planning permission. They failed to take into account the nature of the rights conferred on the appellant by the grant of such permission.”

“62. However, when planning permission is granted there is a fundamental change in the legal position, in that it creates rights under the planning legislation for the developer to develop land in accordance with the permission. Those rights are not made defeasible depending on government policy. That is true both in respect of a grant of full planning permission and in respect of a grant of outline planning permission (which, as observed above, is itself a grant of planning permission, albeit one subject to conditions). Rights given by the planning legislation cannot be overridden or diluted by general policies laid down by central government, whether in the form of the NPPF or otherwise: R (Wright) v Forest of Dean District Council [2019] UKSC 53; [2019] 1 WLR 6562, para 42.”

“70. Therefore, it was not open to the Council or the inspector in the present case to use the fact that the outline planning permission was granted subject to conditions requiring approval to be given by the planning authority for certain matters, and that such approval had not been given outright but subject to sub-conditions within the ambit of the main conditions set out in the outline permission, as a basis to say that, before those sub-conditions were discharged so that the development could proceed, some additional measures to promote a different objective (ie the protection of the Ramsar site) should be taken. The planning legislation gave them no power to do that, unlike the position in relation to a European site, where the Habitats Regulations apply. National policy and new scientific advice of the kind in issue in this case do not confer such a power, because the operation of the conditions set out in the outline planning permission (and hence of the sub-conditions set out in the reserved matters approval) is determined by the interpretation of the conditions set out in the outline permission; and they allow no reference to such an objective. (By contrast, a planning authority would be entitled, and may be required, to have regard to a national or local policy directed to the substance of the condition in question, eg, taking the example of condition 3, a policy on the best way to ensure that trees are protected).“

The implications of this decision for developments with extant consents where implementations is held up by impacts on Ramsar sites may, however, be short lived. The only reason the appropriate assessment was not required in this instance was because the impacted site was a Ramsar site and not bound by the Habitat Regulations in the same way as protected European sites.

This is a situation that may well change in the very near future as one of the amendments to the Planning & Infrastructure Bill that is likely to be discussed next week would extend Habitat Regs protections to Ramsar sites…. so the distinction between policy and legislative requirements made by the Supreme Court in this judgment, in so far as they relate to Ramsar sites, may not stand for long.

It will, however, still be useful in other situations where there is a sudden change in planning policy post- grant of consent. For example if the flood maps for a site change after an outline planning permission had been granted.

Attempts to jump-start London’s Housing Delivery (through Planning)

And last, but by no means least, yesterday MHCLG and the GLA announced a package of “emergency measures” designed to accelerate housing delivery in London.

I have summarised the measures, and the route to implementing them in the table below.

In addition to the above, the government has stated that it intends to “clarify the use
of Section 73 of the Town and Country Planning Act 1990 so that an application under this section to vary a condition of a planning permission should no longer be used as an alternative means of reconsidering fundamental questions of scheme viability or planning obligations.” which could be interesting….

Many of the proposals will be subject to a six week public consultation, which is due to open in November, and then require secondary legislation or the adoption of new planning policy guidance. This means that they are unlikely to be implemented until the new year.

It will be very interesting to see the formal consultation on the measures next month, as the summary policy document and MHCLG’s Press Release have left me with some questions:

• Why does the emergency CIL relief only impact the charging schedules of the London Boroughs and leave Mayoral CIL untouched?
• Why does the CIL relief not appear to apply to un-phased development sites that have already started construction, but stalled part-way through development?
• Why does the new planning-route retain such a strong focus on late-stage viability reviews, when these are the reviews more likely to deter investment into development schemes?
• How helpful will the availability of grant be when the policy document states that the GLA does not expect to renegotiate grant allocations for projects that have already been approved?

In short, I am really looking forward to getting stuck into the detail in a couple of weeks time!

That isn’t the end of it….

If that isn’t enough for one week, yesterday:

• the Times published an article suggesting that “Brownfield Passports” backed by “strong design codes” encouraging development styles such as Georgian terraces and well-designed apartment blocks would be announced shortly; and
• Matthew Pennycook issued a Written Ministerial Statement announcing plans for a new centrally-led development corporation and funding package for Greater Cambridge.

After such a jam-packed week, I think we could all do with a couple of days off. That includes MHCLG, although given the government’s recent fondness for Sunday announcements – that might be something of a forlorn hope.

Thank heavens it’s Friday!

*the first hosted on Birkett’s website, and doesn’t it look spiffy!